Wednesday, April 9, 2014

Hong Kong resident and activist Yang Kuang (杨匡, pictured right) is on trial in Shenzhen for illegal border crossing. He was detained on December 31, 2013, while attempting to return to Hong Kong after visiting his wife in her native Henan Province. Yang’s immigration documents were revoked in March 2013 in retaliation for his attempts to visit Liu Xia (刘霞), the wife of imprisoned Nobel laureate Liu Xiaobo (刘晓波), who is under house arrest in Beijing. Yang is reportedly suffering from severe headaches and has been unable to receive treatment outside Shenzhen No. 1 Detention Center, where he is being held.

Following the recent death in custody of civil society advocate Cao Shunli (曹顺利), the situations of people like Yang Kuang—people who are detained by mainland Chinese authorities and have histories of political activism and indicators of ill health—must be monitored and their rights protected. Which actors and strategies are involved in these interventions depend in no small part on the citizenship and residency status of the detained.

Unlike foreign governments who are able to visit their foreign nationals, the government of the Hong Kong Special Administrative Region (HKSAR) does not have an agreement with mainland China to access Hong Kong residents who are arrested or detained on the mainland. As Hong Kong is a part of China, it cannot have a consular agreement with China. The HKSAR government has been negotiating a prisoner transfer agreement with its mainland counterparts, but little progress seems to have been made.

At present, the HKSAR government can only assist detained Hong Kong residents by inquiring about and providing advisory services to them upon request by the detained person or their relatives or friends. The numbers of people requesting assistance and of resulting releases, however, have declined in recent years, according to a 2011 report by Voice of America. The report states that in 2008 the HKSAR government received 46 requests for assistance and was able to obtain the release of 12 Hong Kong residents in mainland custody. In 2009 and 2010, those numbers reportedly fell to 35 requests and 11 releases and 27 requests and two releases, respectively. A local rights activist quoted in the report likened the HKSAR government to a “postal worker,” able to deliver messages but not curb prolonged detentions or facilitate family visits.

In 2011, Xinhua reported that there were 1,250 Hong Kong residents serving sentences on the mainland. Eight hundred of them were in Guangdong Province. When Dui Hua Executive Director John Kamm visited Dongguan Prison in November 2002 he was shown a cell block for Hong Kong residents. The warden told Kamm that there were 400 prisoners from Hong Kong and Macau in Dongguan Prison at that time.

In 2014, Dui Hua estimates that there are approximately 2,000 Hong Kong residents in mainland prisons and detention centers. (Hong Kong people can also be held in forms of extra-legal detention such as custody and education.) Dui Hua’s Political Prisoner Database includes information on seven Hong Kong residents currently in mainland prisons and detention centers, including at least two people charged with endangering state security.

The proper means of intervening on behalf of detained persons is often unclear. The United States and other countries have, however, seen success through the use of consular visits. In the US case, these visits helped improve the situation of American geologist Xue Feng (薛峰), who received a 10-month sentence reduction in 2012. Unfortunately, US businessman Vincent Wu (胡炜升) has been denied consular visits since the mainland does not recognize his US citizenship. Currently standing trial in Guangzhou, Wu entered China using his Hong Kong ID.

In terms of statements and lobbying, the HKSAR government has been less outspoken than the British government during Hong Kong’s colonial period. British officials called for the release of Luo Haixing (罗海星) after Luo was sentenced to five years in prison for his part in “Operation Yellowbird” in March 1991. (The aim of the operation was to help pro-democracy activists escape from mainland China to Hong Kong in 1989.) Luo, who passed away in 2010, was granted medical parole six months after his conviction.

British officials also lobbied Beijing to release Ming Pao journalist Xi Yang (席杨), who was sentenced to 12 years in prison for “leaking state secrets” in 1993. He was released on parole in 1997. In these and other cases, Dui Hua played an important role in convincing Beijing to grant clemency.

Working in conjunction with the US government and local and international advocacy groups, the HKSAR government helped secure the early release of well-known journalist Ching Cheong in 2008. Yet when Ching was sentenced on the mainland on August 31, 2006, the press statement made by Hong Kong Chief Executive Donald Tsang seemed to highlight the limited role the HKSAR government could play in prisoner interventions:

In rendering assistance to residents, the HKSAR Government must respect the “One Country, Two Systems” principle and does not interfere with the law enforcement and the judicial process on the Mainland, just as the Mainland authorities do not interfere with cases that fall within the jurisdiction of the HKSAR.

The line between interference and assistance can be easily blurred—especially when “interference” is aimed at individuals ensnared in a flawed criminal justice process. Just last month, Hong Kong’s Legislative Council was asking “how to assist in handling an incident of arbitrary detention outside Hong Kong.” At issue was the detention of 73-year-old Yao Wentian (姚文田), head of Hong Kong’s Morning Bell Press, in Shenzhen in October 2013. Yao is being investigated for alleged smuggling activities, but it is no secret that he has assisted in the publication of many books banned in mainland China and suffers from asthma and heart problems.

Should Hong Kong deem it important to gain access to residents imprisoned on the mainland, perhaps it could work towards implementing agreements with local governments, particularly Guangdong, whereby the departments concerned structure prisoner access between the two parties. Visits and more proactive interventions by Hong Kong officials as well as the publication of relevant statistics may be effective means for Hong Kong to assist its residents. Without proper assistance, Hong Kong residents detained on the mainland appear adrift: without the linguistic and cultural fluency of locals or the consular protections of foreign nationals.